Judge Ronald F. Frank, Case Number: 22TRCV00912, Date: 2023-11-21 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00912, Date: 2023-11-21 Tentative Ruling

Case Number: 22TRCV00912 Hearing Date: February 16, 2024 Dept: 8

Tentative Ruling

HEARING DATE: February 16, 2024¿

CASE NUMBER: 22TRCV00912

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CASE NAME: Daniel Sydney Andrews v. Smart & Final LLC, et al.

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MOVING PARTY: Plaintiff, Daniel Sydney Andrews

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RESPONDING PARTY: Defendant, Smart & Final Stores, LLC

TRIAL DATE: June 3, 2024

MOTION:¿ (1) Motion to Compel the Depositions of six (6) Smart & Final Stores, LLC Employees, all within 10 days of the hearing

(2) Request for Monetary Sanctions

Tentative Rulings: (1) Denied as to the 10-day period sought by the motion, but the Court grants the motion to require in-person depositions to be scheduled by the end of March in a manner so as to not unduly interfere with the operation of Defendant’s business.

(2) Request for Monetary Sanctions is Denied, without prejudice to the Court’s earlier ruling that sanctions be revisited on March 7 if 2 designee witnesses of the 6 that are the subject of this motion have not taken place by then, and without prejudice to being revisited if the 4 other depositions have not been scheduled for mutually agreeable dates by the end of March. If counsel cannot find mutually agreeable dates, the Court will make itself available for an IDC at 11:00 a.m. on a weekday when it is not in trial to help pick dates for any remaining unscheduled depositions

I. BACKGROUND¿

A. Factual¿

On October 10, 2022, Plaintiff, Daniel Sydney Andrews (“Plaintiff”) filed a Complaint against Defendants, Smart & Final LLC, Smart & Final Stores, LLC, and DOES 1 through 10. The Complaint alleged causes of action for: (1) Premises Liability; and (2) General Negligence.

On May 7, 2023, Plaintiff notes that he requested dates for deposition for (1) Adrian Rios; (2) Charlton Wayne Whittington; and (3) PMK re CGL insurance and excess insurance. Plaintiff contends that Defendant offered Adrian Rios for deposition on July 25, 2023 at 10:00 AM. On May 24, 2023, Plaintiff notes that Defendant served Plaintiff with an amended deposition notice for Plaintiff’s deposition to take place on July 28, 2023. Plaintiff notes he was prepared for deposition by Plaintiff’s counsel and was prepared to testify on July 28, 2023, but defense counsel cancelled the deposition. Plaintiff highlights the long history of discovery proceedings between the parties. This Court, just two days ago, DENIED a Motion for Protective Order by Defendant, noting that all six (6) depositions could move forward in person. Now, Plaintiff is moving for an order to compel Defendant to produce 6 witnesses for deposition within ten (10) days.

In opposition to this motion, Defendant offers the declaration of counsel to assert that since the COVID pandemic, Smart & Final and other grocery markets have been tightly staffed leading to Defendant’s insistence that party-affiliated deponents be scheduled for remote depositions so as to minimize the impact on store operations. Defense counsel also discusses the early identification of percipient witnesses and an apparent dispute between counsel over deposition priority as well as deposition location. The Opposition also states that Smart & Final has been willing to put up its witnesses for deposition but a claimed lack of civility between counsel has resulted in this third discovery dispute to be scheduled for a court hearing.

B. Procedural

On December 12, 2023, Plaintiff brought this Motion to Compel the Deposition of six (6) Smart & Final Employees. On February 2, 2024, Defendant filed an opposition. On February 7, 2024, Plaintiff filed a reply brief. On February 14, 2024, the Court posted a tentative ruling on the defense motion for protective order, indicating that the Court would require in-person depositions of party-affiliated deponents if the deposing part insisted on taking them in person, denying monetary sanctions to either side, and continuing the sanctions issue for several weeks to ensure that two of the six specific depositions be taken within that time. The fact that this motion remains on calendar is a reflection of the lack of normal, amicable, civil discussion between counsel in this case. The fact that 6 depositions are required of a defendant in a relatively straightforward premises liability case is surprising but defense counsel has expressed a willingness to offer them up to be deposed.

¿II. ANALYSIS ¿

A. Legal Standard

Code of Civil Procedure section 2025.450, section (a) provides:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

(Code Civ. Proc., § 2025.450, subd. (a).)

The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)

B. Discussion

In Defendant’s opposition brief, Smart & Final argues that this motion is moot because defense counsel indicates he has provided dates for the depositions to move forward, coordinated with the deponents to secure additional dates so that Plaintiff could have the time he believed he could complete the deposition, and that Defendant only requested the depositions be taken by remote means rather than in person.

The Court notes that on February 14, 2024, this Court already denied the Motion for Protective order filed by Defendant for an order to allow the deponents to appear remotely. At the February 14, 2024 hearing, this Court noted that it continued the monetary sanctions request to March 7, 2024, and noted that while at the time, the Court did not award monetary sanctions, if two specifically identified designee depositions (the PMQ and the COR) were not taken by then, the Court would reconsider the sanction amounts at the March 7, 2024 hearing.

As with the Motion for Protective Order, both parties have requested sanctions in connection with this motion. Again, while the Court does not find that monetary sanctions should be awarded to either party at this time, the Court will reconsider monetary sanctions if the two designee depositions (PMQ and COR) have not been scheduled for in-person deposition on mutually agreeable dates before March 7, and if the remaining four depositions have not been scheduled in person for mutually agreeable dates by the end of the month of March so as not to unduly interfere with the operations of defendant’s business operations. The Court reminds both sides of its willingness to conduct Informal Discovery Conferences should counsel be unable to agree on dates over the next 6 weeks.